Qazi Aftab Ahmad vs State Of J&K & Ors
2022 Latest Caselaw 614 j&K/2

       HIGH COURT OF JAMMU &KASHMIR AND LADAKH
                      AT SRINAGAR


                                         SWP No. 847 /2008
                                        Reserved On : 26.04.2022
                                        Pronounced On: 18.05.2022


Qazi Aftab Ahmad
                                                  ......Petitioner(s)
                    Through: Mr.B.A.Bashir,Sr. Advocate with
                             Ms.Asifa Bijli, Advovate.

                                     Versus
State of J&K & Ors.
                                                 .....Respondent(s)

Through: Mr.Illiyas Nazir Laway, GA vice Ms. Asifa Padroo, AAG Mr. Mir Majid, Advocate for R-6.

CORAM: HON'BLE MR JUSTICE M.A.CHOWDHARY, JUDGE

1. Through the medium of the present petition the petitioner prays

the following reliefs:

i) By issuance of a writ of mandamus or any other

appropriate writ, order or direction, respondents be

directed to promote the petitioner to the post of General

Manager with effect from the date, he was eligible for

such promotion and to give him all the consequential

benefits of such promotion in preference to the proforma

respondent, keeping in view his rank, status and seniority

in the Department.

ii) By issuance of a writ of certiorari or any other appropriate

writ, order or direction, the decision dated 1.7.2014 of the

SWP No. 847/2008. Page 1 Senior Selection Committee, SKICC Srinagar be

quashed.

2. It has been pleaded in the petition that this court vide

Judgment dated 16.05.2007 passed in SWP No. 1251/2005 directed

the respondents to place the petitioner in the pay scale of 10,000-

15200 w.e.f. 18.06.2005 and pay his emoluments and also

promotional benefits be worked out accordingly. Respondents

challenged the said judgment in appeal (LPA NO. 164/2007) before

a Division Bench of this Court. The appeal was, however, dismissed

by the Division Bench vide order dated 01.09.2007.

3. Learned Senior counsel for the petitioner submits that in light of

the judgment dated 16.05.2007, the petitioner was to be placed in

the pay scale of Rs. 10,000-15200 w.e.f. 18.06.2005 and besides

paying him the emoluments, his promotional benefits had also to be

worked out and paid to him but instead of complying with the

judgment in its letter and spirit, the respondents issued Order No. 19

of 2007 dated 19.11.2007 whereunder sanction was accorded to the

release of pay scale of Rs. 10,000-15200 in favour of the petitioner

w.e.f. 18.6.2005. However, no steps were taken by the respondents

to implement the other part of the judgment relating to the

promotional benefits of the petitioner and paying the same to him.

Therefore, the judgment was partly implemented by the respondents

and part thereof remained unimplemented.

4. It is further stated by learned Sr. counsel for the petitioner that

in terms of Order No. 84 of 2007 dated 20.7.2007 proforma

respondent was promoted to the post of General Manager in the pay

SWP No. 847/2008. Page 2 scale of Rs. 12000-16500. However, the said respondent and

petitioner have joined as Managers in SKICC on the same date viz

18.6.2005. The petitioner was holding the pay scale of Rs. 7500-

12000 and the proforma respondent was working as a subordinate

officer to the petitioner in the pay scale of Rs. 6700-10700. The said

respondent was promoted to the post of Dy. Manager Operations

and placed in the pay scale of Rs. 8000-12950. All officers senior to

her, who were working in the pay scale of Rs. 7500-12000

represented against her placement in the pay scale of Rs. 8000-

12950 and as result of these representations two officers viz. Mr.

Ghalib Mohi-ud-din and Javid Bakshi were placed in the pay scale of

Rs. 12000-16500 and their seniority was protected. In so far as

petitioner is concerned he was discriminated and was not given any

benefit. However, respondents placed the petitioner in the pay scale

of Rs. 10,000-15200 in terms of order dated 19.11.2007 but they

have not worked out his promotional benefits and have not placed

him ahead in rank and grade as provided in the judgment ( supra).

5. The petitioner had filed a representation to the respondents, to

implement the judgment in letter and spirit and promote him to the

post of General Manager in the pay scale of Rs. 12000-16500 from

the same date from which proforma respondent had been promoted

to the said post so that his seniority and status is protected.

Respondents have not considered the representation of the

petitioner till date. Therefore, the petitioner was left with no option

but to again seek indulgence of the Court through the medium of the

present petition. Further it is contended that the respondents had

SWP No. 847/2008. Page 3 placed the case of the petitioner before the Senior Selection

Committee of SKICC in its meeting held on 01.07.2014 under the

Chairmanship of respondent No.1. The committee, however, did not

agree to promote the petitioner to the post of General Manager as

petitioner's post was not the feeding category for the post of General

Manager as per existing Recruitment Rules. The Committee

however, observed that a revision in the relevant Rules is called for

so as to include the case of Manager (Admn) in the feeding cadre

for the post of General Manager.

6. It is pertinent to mention here that in the meeting of the Senior

Selection Committee held on 24.07.2013 under the chairmanship of

Commissioner/Secretary to Govt. Tourism and Culture Department,

it was agreed that necessary amendment/correction shall be made

in the Recruitment Rules where certain posts have not been

shown/projected as a feeding cadre for next higher post i.e. the post

of Manager Administration ( 15600-39100 + GP Rs. 6600) has not

been shown as feeding cadre for the next post of General Manager

(15600-39100 +GP 7500) in the Service Recruitment Rules of 2005,

and such correction, wherever, required shall be made. However,

while considering the claim of the petitioner for his promotion to the

post of General Manager on 01.07.2014 the decision taken on

24.07.2013 had not been kept in mind by the members of the Senior

Selection Committee, rendering the decision dated 01.07.2014 liable

to be set aside.

7. On the other hand, learned counsel for respondents state that

the relief(s) prayed for by the petitioner including one that he be

SWP No. 847/2008. Page 4 placed in the pay scale of Rs. 8000-12950 w.e.f.20.7.1999 from the

date proforma respondent No. 4 was placed in the said pay scale is

legally impermissible as respondent No. 4 was in fact working as Dy.

Manager (Operation) in pay scale of Rs. 8000-12950 w.e.f.

20.7.1999 as compared to the post of Administrative Officer in the

Grade of Rs. 7500-12000 and her promotion from the post of Dy.

Manager to the post of Manager Operation in the grade of Rs.

10000-12500 was only one step promotion. It is submitted that

petitioner pursuant to the court judgment has been placed in the pay

scale of Rs. 10,000-12500 w.e.f. 18.6.2005, however it is not

mentioned in the judgment to give the effect to the grade of Rs.

8000-12950 w.e.f.1999 as claimed by the petitioner i.e. from the

date Yasmeen Khan and her junior were placed in the said pay

scale.

8. It is also submitted that the post of Administrative Officer in the

pay scale of Rs. 7500-12000 which is below the post of Dy.

Manager as the post of Dy. Manager carries the pay scale of Rs.

8000-12950 has been upgraded and after abolishing the post of

Administrative Officer the petitioner has been adjusted as Manager

Administration which involves two step promotions. Petitioner has

been benefited by abolishing the post of Administrative Officer, as

for question of discrimination is concerned, petitioner has not been

subjected to any discrimination.

9. Respondents further submit that the Manager Administration is

not the feeding cadre for the next higher post of General Manager in

the SKICC Service Recruitment Rules of 2005. However, Service

SWP No. 847/2008. Page 5 Recruitment Rules of SKICC came to be revised in 2005 vide order

dated 18.6.2005, where some omissions/mistakes in the printing

were reported. The Senior Selection Committee headed by the

Commissioner Secretary to Govt. Tourism Department in its meeting

held on 24.7.2013 agreed to make amendments wherever

necessary. However, the decision of the Senior Selection

Committee directed to be placed before the Board of Governors in

its next meeting for accord of approval.

10. In pursuance of the directions of the Board of Governors in light

of Agenda Item No. 18.08, the post of Manager Administration will

constitute to be feeding cadre for promotion to the post of General

Manager, SKICC which was not there in the Service Recruitment

Rules of 2005 with effect from the date issue of Order No. 45 SKICC

of 2021 dated 11.01.2021.Copy produced by Ld. Counsel for the

respondents is taken on record.

11. In rebuttal learned counsel for the petitioner states that the

meeting of the Senior Selection Committee ( SSC) was held on

24.7.2013 wherein after realizing the mistake committed it was

decided to incorporate the post of Manager Administration as

feeding cadre for the next higher post and subsequently the next

meeting held on 1.07.2014 proposal for promotion of the petitioner

was also submitted before the SSC which was not agreed for the

reasons that the post is not the feeding cadre. It is also stated that

respondents be directed to promote the petitioner from the same

date when proposal of promotion was submitted i.e. 01.07.2014, as

decision of amendment was already taken by the Committee on

SWP No. 847/2008. Page 6 24.7.2013 and same decision confirmed by the Board. Incorporation

of Manager Administration as feeding cadre for the next higher post

is not a fresh addition but incorporation to rectify the mistake which

had crept in 2005, therefore, petitioner cannot be penalized for the

mistake so committed in omitting to mention the said post as feeding

cadre post.

12. Learned Senior counsel for the petitioner submits that in case

the official respondents are directed to consider the case of the

petitioner for promotion to the post of General Manager, in view of

the amendment of the SKICC Service Rules by including the post of

Manager (Administration) held by the petitioner as feeding cadre to

the promotion of General Manager, the petition be disposed of at

this stage.

13. Learned counsel for the official respondents and the private

respondent do not resist this plea, to accord consideration to the

claim of petitioner for the post of General Manager, in case the

same is done in accordance with the SKICC Service Rules. Learned

counsel for the private respondent, however, submits that the

amended rule cannot be given retrospective effect, detrimental to

the interest of private respondent, who has also filed a petition

separately.

14. On keen perusal of the pleadings, and having regard to the rival

submissions made at the bar, this court is of the opinion that there

shall be no harm to disposal of this petition, in case the same is

disposed of with direction to the official respondents to accord

consideration to the claim of promotion by the petitioner alongwith

SWP No. 847/2008. Page 7 other eligible candidates, to the post of General Manager strictly in

accordance with rules.

15. For the foregoing reasons, this petition is disposed of with a

direction to the respondents to consider the claim of the petitioner

for promotion to next higher post of General Manager strictly in

accordance with the rules occupying the field as of now, in case

there is a vacancy to be filled up by promotion.

16. Writ petition is disposed of accordingly.

SRINAGAR 18.05.2022 ( M.A.CHOWDHARY) JUDGE Mujtaba

SWP No. 847/2008. Page 8